We often think of negotiation as a distinct and climactic phase of a dispute. Interactions leading up to the final settlement event are often considered merely as preparation, if that. In litigated cases, we often ignore the litigation as if it was largely irrelevant to the information available and the dynamics in negotiation. I base these observations on my review of law school negotiation texts in a forthcoming article as well as general conversations with colleagues.
I think that this conception of negotiation misses critical parts of the process and thus leads to misconceptions about how it really works and what lawyers really do.
Of course, the settlement events intended to resolve the ultimate disputes are very important and deserve a lot of attention by practitioners, students, and scholars.
To get a good understanding of final settlement events, it usually helps to also understand the interactions leading up them.
Typically, a case is a long string of related negotiations if one defines negotiation as a process of seeking agreement, as described in an earlier post.
For example, way before the final settlement event, litigators may negotiate about acceptance of service of process, extension of time to file papers, conditions during the pendency of the litigation, discovery schedules, resolution of discovery disputes, exhibits to be used at trial, or a gigazillion other things. Similarly, in a transactional negotiation, lawyers may reach agreements about exchange of information and coordination of actions needed before the parties are ready to negotiate the ultimate deal.
People often don’t think of these preliminary interactions as negotiations because the lawyers work out agreements with little or no difficulty. But the agreements are critical events. Lawyers can – and do – argue about all of these things in some cases. If they didn’t reach these agreements about these preliminary matters, the cases generally would be longer, more expensive, and more contentious. And the existence (or absence) of these preliminary agreements can easily affect the ultimate negotiations.
And these are just the negotiations with the other side. Lawyers also negotiate with lots of other people during a case.
As I describe in my article, lawyers agree with clients about the tasks that they each will perform and how the lawyer will to respond to the other side at various points during the litigation, and attorney’s fee arrangements. Lawyers reach agreements with people such as co-workers in their firms, process servers, investigators, court reporters, technical experts, financial professionals, and mediators. Lawyers regularly reach agreements with judges about case management issues such as discovery plans and schedules, referral to ADR procedures, and ultimate issues during judicial settlement conferences. Some communications are not oriented to reaching agreement (and thus are not negotiation), but there are a lot more such communications than most people realize.
So lawyers are veritable negotiation machines.
In litigated cases, we should think of negotiation as what Marc Galanter calls “litigotiation,” which he defines as “the strategic pursuit of a settlement through mobilizing the court process.” He writes that “negotiation of disputes is not an alternative to litigation. It is only a slight exaggeration to say that it is litigation. There are not two distinct processes, negotiation and litigation; there is a single process of disputing in the vicinity of official tribunals.” Marc Galanter, Worlds of Deals: Using Negotiation to Teach About Legal Process, 34 J. Legal Educ. 268, 268 (1984).
Viewed from this perspective, most pretrial activity is negotiation. We don’t normally think of formal discovery as part of negotiation, for example, but it generates information used in the ultimate negotiations and affects the bargaining dynamics.
One lawyer in my study said, “It is all negotiation from the time suit is filed. You are constantly negotiating or setting up the negotiation. It doesn’t just happen. You are negotiating from the outset, setting up where you want to go. You are judging [the other side] and they are judging you.” He elaborated, “Negotiations don’t occur in a week or a month. They occur in the entire time of the lawsuit. If anyone tells you they aren’t negotiating, they really are. Every step in the process is a negotiation. You don’t call it negotiation, but in effect, that’s what it is.”
I have focused on negotiation in the litigation context, but these ideas can be adapted for transactional negotiations as well as negotiations that don’t involve lawyers.